1. This is an appeal by the Government of Assam in the case of one Kantila Chutia who was tried by the Sub-Divisional Magistrate of Golaghat on a charge of lurking house trespass by night and acquitted.
2. The ground on which we have been asked to interfere with the order of acquittal is that in the case against the accused he was not only charged under Section 457, but there was also a charge under Section 354 Indian Penal Code, of outraging the modesty of a woman. The learned Deputy Legal Remembrancer, on behalf of the Government of Assam, contends that a charge under Section 354, Indian Penal Code, is not triable summarily, and as there was a charge under Section 354, Indian Penal Code, the learned Magistrate was not justified in trying the case only under the charge under Section 457, Indian Penal Code, in a summary way.
3. The facts would appear to be these : On the 4th of April 1926 one Tileswar Mohanto came to the police-station and reported to the following effect. That last night while he was away from house, his wife was sleeping with her children and a lamp was burning in the room. At about 10 p.m. in the night Kantila Chutia, the person accused, entered the room by opening the door. His wife on seeing the accused asked why he had entered the room. On this he put out the lamp. Thereupon his wife cried out, but the accused caught her by the neck. Apparently on hearing the woman's cry people came and the man ran away. The case was entered in the station diary as one of house-breaking by night under Section 456, Indian Penal Code. Section 354, Indian Penal Code, did not appear in this first information report and quite naturally too, because it is clear from the statement made to the police that there was no suggestion that the woman's modesty had been outraged. The police, however, made an investigation and sent up charges under Sections 457 and 354, Indian Penal Code. The Magistrate apparently not putting very much reliance on the charge under Section 354, Indian Penal Code, tried the case, as I have stated above under Section 457, Indian Penal Code. As far as I can see there was no charge made by the complainant that the modesty of his wife had been outraged. I may point out here that every assualt on a woman or every use of criminal force to a woman does not necessarily fall under Section 354, Indian Penal Code, namely, an assault or use of criminal force to a woman with intent to outrage her modesty. After all the woman herself was the best person to state whether her modesty had or had not been outraged by the fact that the accused had put his hand on her neck. There was no suggestion in the first information that her modesty had been so out raged. Neither in her evidence which she gave when the case of house-breaking was tried did she suggest that her modesty had been outraged. In order to constitute an offence under Section 354, Indian Penal Code, it is necessary that the assault or use of criminal force to a woman must be used with intent to outrage or knowing it to be likely that he would thereby outrage her modesty, There is nothing in the statement 1 made to the police to show that this assualt on the woman was made with the intention o outraging her modesty. It was, apparently, as far as I can see from the circumstances of the case, made because the accused, if he had entered the hut, desired to prevent the woman from crying out and so to prevent the discovery of his presence to the neighbours.
4. In this view of the circumstances the learned Magistrate was quite right in thinking that there was no charge of outraging the modesty of the woman, and he therefore quite rightly did not try the accused under that charge which apparently had only been evolved during the course of the police investigation, but has tried the case on the charge as it was originally made by the complainant where, as I have pointed out, there was no suggestion that the modesty of the woman had been outraged. As I have already stated the best person who can say whether the modesty of the woman has been outraged or not is the woman herself and she does not suggest id has been. The learned Magistrate had, therefore, jurisdiction to try the case under Section 457, Indian Penal Code, and it was triable in a summary form.
5. I would therefore reject this appeal against the order of acquittal. As, how ever, my learned brother holds a different opinion under Section 429, Criminal P.C., the case will be laid before the learned Chief Justice with a view that it may be heard by a third Judge.
6. This is an appeal by the Government of Assam against an order of the Sub-Divisional Magistrate of Golaghat, dated the 4fch May last, acquitting: one Kantila Chutia, on a charge under Section 456 of the Indian Penal Code.
7. As I have the misfortune to disagree with my learned brother, who is of opinnion that the appeal should be dismissed I will state my reasons for coming to contrary conclusion. The facts of the case appear to be shortly as follows:
On the 4th April last one Tileswar Mohanto lodged an information at the Golaghat police-station alleging that on the previous night at about 10 p.m. while he was at the house of a neighbour, the accused Kantila Chutia entered the room where his (complainant's) wife was sleeping and caught hold of her by the neck, and that hearing his wife's screams he hastened thither accompanied by others, but that the accused had in the meanwhile decamped. His wife then produced an ear ornament, which she said she had snatched from the accused when he seized her by the neck.
8. The case was investigated by the police and in due course the accused was sent up for trial under Sections 457 and 354 of the Indian Penal Code. Of these the former offence is triable by the summary procedure, while the offence under Section 354 is not so triable. The Magistrate, however, ignoring the charge under Section 354 proceeded to try the accused for an offence under Section 456, Indian Penal Code, and in due course found him not guily and acquitted him.
9. Mr. Khundkar, on behalf of the Grown, has contended that in view of the fact that the case against the accused was from the beginning under both sections and as the police submitted a charge-sheet in respect of both offences, viz., Sections 457 and 354 of the Indian Penal Code, the Magistrate acted illegally and without jurisdiction in trying the case summarily, that the evidence was somewhat perfunctorily recorded, and that this may have led to a failure of justice.
10. On behalf of the Opposite Party on the other hand it has been urged that no offence was ever disclosed under Section 354, that the Magistrate was entitled to decide what charge he would proceed with, and that we ought not to interfere unless it has been shown that there has been a failure of justice.
11. In my opinion the procedure adopted in this case cannot be supported. The facts stated in the first information made out a prima facie case under both Sections 457 and 354 of the Indian Penal Code, the allegation being that the accused had at about 10 p.m. entered the room where the complainant's wife was sleeping and had seized her by the neck. That is an act which I think clearly comes within the purview of Section 354, since the accused may fairly be presumed to have known that his act was likely to outrage the woman's modesty. Indeed I am of opinion that the offence under this section would be committed even if the primary object of the accused in entering the room was theft or robbery.
12. It is true that in the first information Section 456 of the Indian Penal Code only was mentioned, and no reference was made to Section 354, but too much importance should not, I think, be attached to this, as these particulars are not always very carefully given, and the officer who records the information may be doubtful as to the offence which has been committed. In any view of the facts it is clear that Section 456 was not appropriate, since whether the intention was to commit theft, or rape, or adultery, there would be an offence under Section 457.
13. As a result of the police investigation a charge-sheet was submitted, stating that the offences under Sections 457, 354 of the Indian Penal Code had been well established. That being so, the Magistrate was not justified, in my opinion, in ignoring the charge under Section 354, and proceeding to try the accused summarily upon the charge under Section 457 see Ramanund Mahton v. Koylash Mahaton  11 Cal. 236. There were no materials before him at that stage upon which he could hold that the charge under Section 354 was false, nor did he record any such opinion. By adopting the course which he did, the learned Magistrate at the outset rejected a material portion of the story.
14. Further it cannot be gainsaid that the evidence has been recorded in a very summary fashion, and I am inclined to think that this may have brought about a failure of justice.
15. For the reasons stated I am constrained with all respect for my learned brother's opinion to differ from him and to hold that the appeal should be allowed, the order of acquittal set aside, and that the case should be directed to be retried according to law by a Magistrate other than the, Magistrate whose order forms the subject-matter of this appeal.
(On a difference of opinion Buckland, J., as the third Judge delivered the following:)
16. On the 4th April 1926, the complainant reported at the police-station that in his absence from home, at 10 o'clock at night, Kantila Chutia, whom for convenience I will call the accused, though he has been acquitted, entered his house where his wife was sleeping with her children. His wife called out asking why he had entered the room. The accused extinguished the lamp which was alight, whereupon the complaint's wife called out, but the accused caught her by the neck. Other people came up and the accused ran away.
17. In the first instance the case was entered in the diary as one under Section 456, Indian Penal Code. An investigation was held and the police sent the accused up for trial upon charges under Sections 457 and 351, Indian Penal Code. It is not suggested that the charge under Section 457 was substituted for the charge under Section 456 on account of the alleged offence charged under Section 354. The offences with which the accused was charged therefore were those of house-breaking by night in order to commit an offence punishable with imprisonment and assaulting a woman with intent to outrage her modesty. The former charge is triable summarily under Section 360(1)(i) of the Code of Criminal Procedure. That under Section 354 is not so triable. The Magistrate tried the case summarily, and in doing so ignored the charge under Section 354. This is the gravamen of the complaint, for, as the accused was acquitted, the Government of Assam has appealed against the acquittal. As my learned brothers constituting the Bench which have heard the appeal have differed as to the order to be made, the case has been referred to me under Section 429 of the Code of Criminal Procedure.
18. The arguments which have be9n addressed to me by the learned Deputy Legal Remembrancer who appears on behalf of the Government of Assam are based upon the irregularity which be submits has taken place in the trial and on the facts. He has invoked the principle that a Magistrate cannot by ignoring a charge which he has no jurisdiction to try give himself jurisdiction to try an accused person upon another charge. But that is not the case here. There is no question of the jurisdiction of the Magistrate to try the accused for either of the offences, and different considerations arise.
19. learned Deputy Legal Rmembrancer has argued that the Magistrate approached the case with bias by reason of which he ignored the charge under Section 354. For that observation I see no grounds, the less so when the next contention is considered. That is that when the evidence of Jayanti, the wife of the complainant, had been recorded, the Magistrate should on her evidence at once have stopped the summary trial and tried the case regularly. That he could no doubt have done had he deemed it the correct course to adopt, but in that he would be influenced by the view he took of the evidence. This brings me to the argument based upon the facts.
20. It is obvious that if any offence under Section 354, Indian Penal Code, had been committed, an offence under Section 456 or 457, for this purpose it is immaterial, must have been first committed. The one could not happen without the other. The Magistrate was trying a case under Section 457. Unless he believed the...evidence upon the charge there was no possibility of his believing the evidence upon a charge under Section 354, Indian Penal Code. The Magistrate has clearly disbelieved the whole story. That he was entitled to do, and I am not prepared to say that a Magistrate who has seen the witnesses and heard them give their evidence is necessarily wrong because acceptance of the evidence of a lesser number of witnesses called for the defence involves disbelief of the evidence of a larger number of witnesses called on behalf of the prosecution. Had the. Magistrate believed the evidence of the witnesses for the prosecution, in particular Jayanti, it may be that he would have adopted the course which it has been argued he should have followed even in the circumstances.
21. It has been argued that had the Magistrate, irrespective of the view which he took of the evidence, adopted that course, there would have been a fuller record and the materials before the Court would have been more ample. This is not an argument which commends it elf to me because it ignores the view which the Magistrate took of the evidence, and there is no reason to suppose that he would have taken any different view of the evidence given on the charge under Section 457 had he so proceeded.
22. I agree that; it would have been preferable had the Magistrate proceeded regularly and tried the accused upon the two charges upon which he was sent up for trial. The result might have been in no way different, and indeed, if I have formed a correct appreciation of what influenced the mind of the Magistrate in acquitting the accused, it would not have been different, but that does afford an excuse for the Magistrate not having proceeded in the first instance in a manner more strictly correct.
23. Having regard to the whole case I am not prepared to say that the accused should have been convicted of the charge under Section 457. Nor am I of the opinion that the course followed by the Magistrate is one which requires that as a matter of course the case should be retried or that by reason of that course there has been a miscarriage of justice requiring that this Court should interfere.
25. In the view which I have expressed no question need be considered whether the facts disclose an offence under Section 354, Indian Penal Code, and I express no opinion upon the point.
26. The appeal will be dismissed.
27. The accused will be discharged from his bail-bond.